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October 28, 1976

Mitchell UNTERMAN, Defendant

The opinion of the court was delivered by: COOPER

IRVING BEN COOPER, District Judge.

 Deficiencies in the conduct of some defense counsel on the day of sentence can so acutely interfere with the functions of the sentence that they should not be received with amiable toleration. This is so in all cases -- the hardened offender, the recidivist, the first offender and youth. The misapprehension of counsel in this regard often seems to be based upon a want of understanding rather than upon any conscious purpose. Clearly unprepared at sentence, they denounce, as they may, the court, its agencies and the community, and do so in such fashion as to leave defendants with the impression that they are more sinned against than sinning.

 To waste that right without reflection or cause fails to enlighten the court, is demeaning to the profession, and most importantly risks lasting harm to their clients. Such an approach by counsel often thwarts the judicial purpose, particularly in planning steps aimed at possible rehabilitation of certain defendants.

 Our concern with this throbbing problem has been simmering all too long; we have continually fretted and repeatedly warned counsel about it; we have wanted to speak out; the Unterman case precipitated our resolution.

 When Unterman came on to be sentenced last July, his attorney, in open Court and in the presence of his client, heatedly attacked the medical report relating to defendant (including psychiatric and psychological findings) which we had theretofore ordered pursuant to 18 U.S.C. § 4208(b) so as to be better prepared to impose a sentence fair to defendant and community alike. Although he had neither applied for (Fed.R.Crim.P.32(c)(3)(E)) nor seen the medical report, he emphatically declared its conclusions flimsy and urged their discard. Clearly encouraged by his attorney's biting denunciation, defendant firmly pressed for his immediate freedom and indicated that anything short thereof unthinkable and unworthy.

 Several weeks before, the defendant (his attorney present) had entered a plea of guilty to six felony counts charging him with possession of stolen mail and forgery of U.S. Treasury checks (Title 18, U.S.C. §§ 1708, 495).

 An enlightened and informative pre-sentence probation report suggested that further inquiry into defendant's medical background was desirable and accordingly defendant was committed pursuant to law. It arrived in due course and was before us on the day of sentence which commenced in proper fashion. The Government had "no statement to make." *fn1" Defendant's counsel offered the opinion that his client was not a "powerful figure" because his victims were poor people. "His is not the kind of fellow with enough nerve to attempt a bank robbery. . . . [these] relatively insignificant people have been hurt by his actions." Counsel then suggested that while working at Lewisburg Penitentiary where the medical testing was conducted, defendant became aware of the fact that he could work and enjoy "the steady, routine parts of life" and concluded with "he would very much appreciate an opportunity on probation. . . ."

 Called on for allocution, defendant expressed himself positively: the few months of incarceration had been a "hard lesson but instructable . . . no future in the criminal activity I was engaged in . . . I could get a job . . . in the legal life . . . and make every effort to hold it . . . I am asking for a chance to prove myself."

 We regarded it appropriate to read into the record excerpts from the summary submitted by the Office of the Regional Director of the Bureau of Prisons: "Mr. Unterman has experienced numerous arrests and previous confinements as an adult offender for various offenses involving fraudulent behavior. He is serving his third period of confinement. He has a high school education and possesses average intelligence. However, he lacks motivation and has no history of employment. Mr. Unterman has no history of mental illness, and recent psychological evaluation does not suggest any problem in this area. His behavioral traits are, however, indicative of sociopathic character disorder, and he is deficient in his ability to control his impulses at the present time. He functions at the 11th grade level educationally. He has no history of drug abuse and is in good physical health. A sentence should provide an opportunity for Mr. Unterman to participate in a correctional program designed to meet his counseling and vocational needs. It should also provide for a period of supervision upon his release."

 We listed the factors favorable to defendant all of which we told him "[you're] throwing . . . in the waste basket." It was then that counsel became aroused. As to medical reports in general that he has read, they "are perceptive but . . . the conclusions, based upon the data that they gather" are unreliable. He firmly believed that "the prison system today . . . is not, by any stretch, ever to be used for rehabilitative purposes." Further, "whereas opportunity should be made available for people who are deficient in one way or another in institutions, it should never be imposed upon them."

 Counsel expressed the belief that since his client had "the incentive to undertake responsibilities himself, that is the place where it should be tested, in the real world rather than on the artificial turf, so to speak, of the prison system." He suggested that the only alternative, if incarceration was contemplated, was to mete it out exclusively as punishment because "the rehabilitative idea" is not "the correct view. . .."

 Thereupon the defendant spoke up and took vehement exception to the medical report's statement "that I am unable to control my impulses." He insisted otherwise.

 We declared the defendant "has values that can be worked on and help him to get his feet on the ground. . . . We are concerned with the future development of this man . . . and [a] strong belief, confirmed by legions of instances where a program of rehabilitation, including vocational training, which this defendant is sorely in need of, may very well see him on the right road."

 We imposed a sentence of three years to run concurrently on each of the five counts, with credit for time already served. This brought counsel's belated request for an examination of the medical report; we reserved decision and upon receipt of his later written request, granted permission. We resolved thereupon to express at a later date our impressions of this and similar unfortunate approaches to the sentencing objective and the irreparable damage frequently visited upon both defendants and community by such misguided effort. We closed the proceeding by setting aside the sentence imposed, directed that all else remain on record, and adjourned the matter.

 To his credit, defense counsel on the adjourned date realigned his value of the official medical report: "this particular one is excellent. Frankly, as much as the conclusions can be [depended] upon, I think they are pretty accurate too. I see Mr. Unterman in much the same way . . . . I have told him in my opinion if I was the judge I don't think that he deserves much of a break . . . . The weakness of his prey is an indication of his own wit." However, counsel persisted, "I don't think that he is going to get anything out of prison . . . [in] spite of the fact he needs skills, he has nothing to sell . . . [and while] he clearly does not deserve it . . ." place him on probation.

 It was apparent that the defendant was somewhat startled at his attorney's revised estimate of him. In sharp contrast to his first allocution on July 28th, he addressed the court in a subdued tone. "It is not a question of what I deserve but maybe what I can benefit from."

 We were encouraged and told counsel he was now "standing in the role of an advocate for justice . . ." and not committed, as many lawyers, to the belief that their sole mission on sentence day is summed up with, "my job is to get my man out." We attempted to point up the harm done a defendant when on sentence his attorney denounces the court, its agents and official departments. After such tactics "[what] other deductions can a defendant have with regard to his sentence . .. than to take comfort in what [his] lawyer says almost in defiance."

 The attorney is not expected to hold his tongue when an unwarranted assertion of any kind (minor or major) is made inimical to the best interests of his client, no matter where it comes from. But this should be done "as a professional without unfairly denouncing those instrumentalities, weak though they may be, in need of sharpening though they may be." We emphasized that an attorney should always recognize the impact of the proceeding on the future destiny of the defendant.

 We wound up the proceeding by making a part of the record "the probation report which cries aloud for some kind of guidance to the end this defendant shall not [meet] the rest of these years in emptiness and further criminal behavior . . . he is not a newcomer to the field of crime." We expressed a "certain faith that within this fellow there is a reserve of decency that we can alert, a new courage, but he is the only one [who] can release it." We promised that if he demonstrated to our satisfaction that his deportment while incarcerated shows promise, we would urge the parole board to consider him for early release.

 The defendant's personality profile

 Just who was this defendant? On the day of sentence he insisted he should be set free because he could manage for himself and promised no further "contact with the law." He took violent exception to the statement in the medical report that "he is deficient in his ability to control his impulses. . . ." His attorney blandly offered the assurance that the defendant now recognized that he could "enjoy the steady, routine parts of life." These easy assurances were offered as though the court had not been educated in detail by the probation report as to defendant's character. In our court sentencing has long ceased to be based on first impressions. Off-hand assurances are useless to the sentencing judge.

 The probation report on Unterman, to which no mention whatever was made by defendant or his attorney on sentence (permission to examine it had been granted long before), states that on 11-5-75 postal inspectors were advised by agents of the U.S. Secret Service that defendant was detained because he answered to the description of a poster circulated theretofore by their office in an attempt to locate a person who uttered a forged U.S. Treasury check on 11-1-74 payable to one A.J. in the amount of $264. -- the check made the subject of count ten to which he had pled guilty before us. On that occasion a search of defendant produced three Authorization to Purchase Food Stamp coupons stolen out of U.S. Mails.

 The probation report continues: Unterman admitted to a Secret Service agent "that he was the 'middleman' in checks in the 145th Street and Broadway area. He advised that individuals would bring him stolen checks and it was his job to have them cashed. He received one-third of the total amount of the check for his efforts. He further advised that the three Authorization to Purchase Food Stamp coupons that he had on his person when detained by the New York City Police had been given to him by an 'unknown' individual to have exchanged for money."

 The defendant had agreed to cooperate with postal inspectors in their continuing investigation of illegal check cashing, but attempts to contact him proved unavailing; he had dropped out of sight.

 Postal inspectors on 11-29-75 observed defendant in a Manhattan hotel lobby. He had in his possession three City of New York welfare checks and a coupon similar to the one mentioned above "all of which he admitted had been stolen from the U.S. Mails." These checks were for $75.; $114.; $65.65; the coupon entitled the legal owner to $83. worth of food coupons.

 Subsequent to his arraignment in the case before us on 12-30-75, defendant was rearrested on 2-10-76 at the premises of a check cashing service in the Bronx "in the process of negotiating a stolen U.S. Treasury check dated 1-12-76 in the amount of $714.40. . . ." He took the position that "he had received this check from an individual known to him as 'Bob' and had agreed to cash the check for payment of one-half the face value."

 On 2-11-76 postal inspectors interviewed one G.G. who related he had neither received his check (involved in one of the counts herein) nor authorized its negotiation; that on a previous occasion he had "chased an individual out of the hallway of his building and ...

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